Irregular rejection of the company's offer for which the judicial reorganization plan provides for a duration of settlement of the liability less than the duration of the contract
The Council of State lays down the rule according to which the offer of the company whose plan of judiciary judicial reorganization foresees a duration of clearance of the liabilities lower than the duration of the market can not be excluded from the procedure of auction .
The Council of State also specifies that in the context of a competitive procedure with negotiation, in the event that the buyer has not limited the number of candidates admitted to participate in the procedure, the verification of the prohibitions to tender can intervene at any time and at the latest before awarding the contract to the only candidate to whom the buyer intends to award the contract.
Rule n ° 1: The offer of the company whose plan of judicial judicial reorganization foresees a duration of clearance of the liabilities lower than the duration of the market can not be excluded from the procedure
The recovery plan is one of the terms of the judicial reorganization of a company in difficulty since Article R 631-43 of the Commercial Code provides that the closure of the legal proceedings occurs only after completion of the plan. turnaround. In a judgment of 1st December 2016, Dus Building Company, the Bordeaux Administrative Court of Appeal has already had the opportunity to recall that the recovery plan is an integral part of the proceedings for bankruptcy (CAA Bordeaux, 1st December 2016, Dus Building Company, req.n ° 14BX01718)
Since the recovery plan forms an integral part of the bankruptcy procedure, it is in principle for the undertaking in such a situation to demonstrate that it is entitled to continue its activity for at least the entire duration of the execution of the contract. Article 45.3 ° c) of the order 2015-899 of 23 July 2015 relative to the public markets indicates indeed that are absolutely excluded from the procedure of the tender the candidates admitted to the procedure of judicial recovery established by the article L 631 -1 of the Commercial Code which does not justify having been authorized to continue their activities during the whole period of performance of the contract.
The jurisprudence of the Conseil d'Etat has been constant until now on the automatic nature of this exclusion (EC 26 March 2014, Commune de Chaumont, n ° 374387, EC 10 November 2010, Minister of Defense, req.n ° 341132).
Nevertheless, in the present case, the Council of State decides to make a reversal of jurisprudence considering that the offer of a candidate whose plan of judiciary judicial reorganization foresees a period of clearance of the liabilities lower than the duration of the market can not be excluded from the procedure. The high court motivated its decision by considering that the recovery plan did not limit in time the continuation of the activity of the company (we note the somewhat surprising nature of this motivation since a recovery plan which has for object to discharge the liabilities of a company can not, by definition, be intended to limit in time the continuation of the activity of an enterprise ......). In any event, it must be understood from this judgment that any company subject to a bankruptcy plan can not have its bid excluded from the procedure even if the duration of the recovery plan has a shorter duration. the duration of the contract.
The purpose of this solution is to render the bidding ban referred to in Article 45.3 ° c) of Order 2015-899 of 23 July 2015 on public procurement void. But above all it presents a significant danger. In fact, what will happen if the company is unable to pay off its debts at the end of the recovery plan even if the recovery plan did not limit in time the continuation of the activity of the company?
In fact, it should be recalled that the cessation of the recovery plan opens a new phase of the judicial reorganization process that ends, either by the liquidation of the company, or by the order made by the president of the court of appeal. pursuant to Article R 631-43 of the Commercial Code.
As a result, the duration of the recovery plan must be compatible with the duration of the contract, ie it must not be less than the duration of the contract in order to avoid any risk of default and / or disappearance of the contract. company before the end of the market.
The Council of State nevertheless proposes a different solution to the risks and perils of the public purchasers.
Rule 2: The stage of the procedure where the buyer must verify the conditions of participation in the context of a PCN without limiting the number of candidates admitted to participate in the procedure
As a reminder, the competitive procedure with negotiation is the procedure by which a buyer can negotiate the terms of the public contract with one or more economic operators authorized to participate in the negotiations. It may be implemented in certain cases exhaustively listed in Article 25-II of Decree No. 2016-360 of 25 March 2016 on public procurement. In accordance with Article 47 of the Decree, the buyer may limit the number of candidates who will be admitted to trading. In this case, this minimum number is three If the number of candidates meeting the advertised criteria does not reach this minimum, the buyer can continue the procedure with the candidates having the required capacities.
The interest of the judgment resides in the reminder of the rule according to which if the buyer has not limited the number of candidates admitted to participate in the procedure, then the verification of the prohibitions to tender can intervene at any time and at the moment. later before the award of the contract and to the only candidate to whom the buyer intends to award the contract.
Article 55 (II) of Decree No 2016-360 provides that the conditions for participation may be checked at any time during the procedure and at the latest before the award of the public contract, specifying that when the buyer decides to limit the number of candidates admitted to continue the procedure, this verification must intervene at the latest before sending the invitation to tender or to participate in the dialogue.
Consequently, in a restricted procedure such as the competitive procedure with negotiation, the moment at which the verification of the participation conditions must be carried out differs according to whether or not the buyer has determined a maximum number of candidates who will be admitted to participate in the competition. following the procedure.
If the buyer has not fixed a maximum number of candidates admitted to participate following the procedure, the verification shall be carried out at any time during the procedure and at the latest before the award of the public contract to the only candidate to whom the buyer is considering awarding the contract.
On the other hand, if the buyer has fixed a maximum number of candidates admitted to participate following the procedure, this verification must take place at the latest before sending the invitation to participate in the negotiations or to tender. This particular rule is explained by the need to ensure that none of the candidates admitted to participate following the procedure turns out, in the end, not to present the conditions of participation he had announced.
Considering the following:
1.In accordance with Article L. 551-1 of the Administrative Justice Code: " The president of the administrative court, or the magistrate he delegates, may be seized in case of breach of the publicity and competitive bidding obligations of the award by the contracting authorities of administrative contracts for the purpose of works, the supply of supplies or the provision of services, with a counterpart of a price or a right of exploitation, the delegation of a public service or the selection of a shareholder economic operator of a single-purpose mixed economy company. (...) / The judge is seized before the conclusion of the contract ». Under I of Article L. 55 1-2 of the same code: "The judge may order the offender to comply with its obligations and suspend the execution of any decision relating to the the contract, unless it considers that, in consideration of all the interests to be harmed, including the public interest, that the negative consequences of these measures could outweigh their benefits. / It may, moreover, annul the decisions relate to the awarding of the contract and to the removal of clauses or in the contract and who disregard the said obligations ".
- The documents in the file submitted to the Pre-contractual Pre-Trial Judge of the Administrative Court of Saint-Barthélemy show that, by a decision of 16 May 2018, the community of Saint-Barthélemy awarded Dauphin Télécom a public overall performance contract for the purpose to design, build and operate the very high speed electronic communications network in its territory. By an order of 13 June 2018, the judge of the pre-contractual injunction, seized by the company net, annulled the procedure for awarding this contract and rejected that company's claim that the Community should be required to resume the procedure at the stage of the analysis of the tenders.
- According to Article 45 of the Public Procurement Ordinance of 23 July 2015: "Are excluded from the procedure of public procurement: (...) 3 ° The persons: (...) (c) Admitted to the proceedings for judicial redress instituted by Article L. 631-1 of the Commercial Code or an equivalent procedure governed by a right which do not justify having been authorized to continue their activities for the duration predictable performance of the public contract '.
- According to Article 48I of the Decree of 25 March 2016 on public procurement: 'The candidate produced in support of his application: / 1 ° A statement on honor to justify that it does not enter into any of the cases mentioned in Articles 45 and 48 of the order of 23 July 2015 referred to above (...) ». According to the IV of Article 51 of this decree: "The buyer accepts as sufficient evidence that the candidate is not in a case of prohibition to tender mentioned in 3 ° of Article 45 of the order of 23 July 2015 referred to above, the production of an extract of the relevant register, such as an extract K, an extract K bis, an extract D1 or, failing that, an equivalent document issued by the competent judicial or administrative authority of the country of origin or establishment of the applicant, attesting the absence of exclusion cases. / When the candidate is in bankruptcy, the candidate produces the copy of the judgment (s) pronounced ". Article 55 (II) of the same decree states that: "The buyer checks the information in the application, including economic operators on whose abilities the candidate relies. This verification is carried out under the following conditions: 1 ° The verification of the ability to exercise the professional activity, the economic and financial capacity and the technical and professional capacities of the candidates may be carried out at any time during the procedure and at the most late before the award of the public contract; / 2 ° The buyer can not require that the only candidate who is envisaged to award the public contract that he justifies not be in a case of prohibition to bid; / 3 ° However, where the buyer limits the number of candidates admitted to continue the procedure, such checks shall be made at the latest before the invitation to tender or to participate in the dialogue.. It follows from these provisions that, except where the buyer decides to limit the number of candidates admitted to negotiate, evidence that a candidate is not in one of the bidding cases listed in Article 45 of the order of 23 July 2015, which can not be required at the filing of applications, must only be made by the candidate to whom the contracting authority intends to award the public contract.
- It is clear from the documents submitted to the pre-contractual judge that, following a declaration of cessation of payment, the Commercial Court of Pointe-à-Pitre, by a judgment of 25 June 2009, receivership in Dauphin Telecom; that, by a judgment of November 4, 2010, this court has adopted a recovery plan for a period of nine years, extended to ten years by a judgment of December 3, 2015, and that, by a judgment of 1st March 2018, he changed the plan again.
- In order to annul the proceedings, the pre-contractual judge, who did not note that the community of Saint-Barthélemy decided to limit the number of candidates admitted to negotiate, held that the company's application Dauphin Télécom was incomplete, because it did not contain the judgments mentioned in the previous point. It follows from what has been said in paragraph 4 that he thus committed an error in law. Dauphin Télécom is therefore justified in seeking the annulment of the order under appeal. As a result, the conclusions of the cross-appeal filed by the company Solutech.net have become irrelevant. There is no longer any need to decide.
- In the circumstances of the case, it is appropriate, pursuant to Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interlocutory proceedings.
- First, under Article 99 (II) of the Decree of 25 March 2016: "For public contracts awarded under a formal procedure, the buyer, as soon as he decides to reject an application or an offer, notify each candidate or tenderer concerned the rejection of his application or offer, indicating the reasons for his rejection. / When this notification comes after the award of the public contract, it specifies, in addition, the name of the successful tenderer and the reasons which led to the choice of his tender. She also mentions the date from which the buyer is likely to sign the public contract in accordance with the I of Article 101. / At the request of any tenderer who has made an offer was rejected on the grounds that it was irregular, unacceptable or inappropriate, the buyer communicated as soon as possible and not later than fifteen days from the receipt of this request: / 1 ° When negotiations or dialogue are not yet completed, the information on the progress and progress of negotiations or dialogue; / 2 ° When the public contract has been awarded, the characteristics and advantages of the selected tender ». It follows from the investigation that the community of Saint-Barthélemy communicated to society Solutech.net, at the same time as the notification of the rejection of her offer, the details of her notes and those of the company Dauphin Télécom and that she responded, by a letter of 4 June 2018, to her email of the 22 May preceding by providing her further details on the features and benefits of the successful tender. As a result, society Solutech.net is unfounded to maintain that it was not sufficiently informed of the reasons for the rejection of its offer or that the provisions of Article 99 of the Decree of 25 March 2016 were ignored.
- Secondly, it follows from the investigation, in particular extracts from the analysis report of the tenders produced by the community of Saint-Barthélemy, that it carried out the verification of the technical and financial capacities of Dauphin Télécom. . Consequently, the plea alleging that the community failed to comply with the provisions of Article 55 (II) of the Decree of 25 March 2016 by refraining from verifying the technical and financial capacities of the firm awarded the contract must be rejected. Moreover, it does not follow from the investigation that its assessment of the company's financial capacity is vitiated by a manifest error.
- Thirdly, it is apparent from the investigation that Dauphin Télécom was the subject, as has been said, of a receivership procedure opened on 25 June 2009 and that, at the end of a period of observation, a recovery plan providing for the discharge of the liability over a period of nine years was decided by a judgment of 4 November 2010 of the Commercial Court of Pointe-à-Pitre, subsequently extended to ten years by d If it follows from the combined provisions of Article 45 of the Order of 23 July 2015 and Articles 51 and 55 of the Decree of 25 March 2016, cited in points 3 and 4, that it was incumbent upon it, for the contract can be attributed to it, to produce a copy of the judgments mentioned in point 5, the community of Saint-Barthélemy could not, as was stated in point 4, require the production of these justifications at the same time as the filing of his candidacy. Since it also follows from the investigation that it had not decided to limit the number of candidates admitted to negotiate, it did not vitiate the procedure of any irregularity by not ruling out the application of the Dauphin Télécom on the ground that its application file was incomplete and merely requiring the company to produce the judgments in question after its tender had been accepted.
Fourthly, it appears from the investigation that, in response to the notification of the award of the contract and the demands of the community of Saint-Barthélemy, the company has addressed to the community the judgments already mentioned. The fact that the recovery plan put in place by those judgments provided for the discharge of the liabilities over a limited period of time and that the duration of performance of the contract exceeded, in the present case, the period of payment of the outstanding liabilities was in this respect, the recovery plan does not limit the continuation of the activity of the company. In those circumstances, the plea alleging that the contract could not be awarded to Dauphin Télécom on the ground that it would have been in the event of a prohibition provided for in paragraph 3 (c) of Article 45 of the the order of 23 July 2015 must be rejected.
- Fifthly, it appears from the direction that the judgment of 4 November 2010 of the commercial court of Pointe-à-Pitre stopping the plan of recovery of the company Dauphin Telecom ended the period of observation and the mandate of the judicial administrator of that company. The plea that the offer of that company would be unlawful if it has not been signed by a receiver can not therefore be dismissed.
- Lastly, it does not follow from the instruction that the legal assistance services to the agreement with the owners in private areas or legal assistance for the marketing of the communication network, provided respectively in Articles 5.1.6 and 5.3.1 of the particular technical clauses, include services of a legal nature which, as such, can only be provided by authorized service providers within the meaning of the Act of 31 December 1971 on the reform of certain legal professions. The plea alleging that the tender selected fails to comply with the applicable legislation and should therefore have been rejected as irregular must be rejected.
- It follows from all the above that society net is not justified in seeking the annulment of the contract award procedure.
- It is appropriate, in the circumstances of the case, to charge the company Solutech.net the sum of 4,000 euros to be paid to Dauphin Télécom under article L. 761-1 of the administrative justice code. The provisions of this article preclude the sum Solutech.net in the same way, Dauphin Telecom is charged to the company which is not, in the present case, the losing party.